On November 20, 2023, CMS released Guidance for Federal Monitoring Surveys (FMS) which identifies the FY2024 and FY2025 focus concerns and guidance on how CMS staff will conduct FMS and communicates estimated FY2024-FY2025 required number of long-term care (LTC) FMS and Life Safety Code (LSC)/Emergency Preparedness (EP) surveys.
CMS is required to conduct FMS of at least 5 percent of the number of skilled nursing facilities (SNFs) surveyed by the State in the year, but in no case less than 5 SNFs in the state. It is also required that similar performance of FMS for nursing facilities be conducted, including the health, LSC, and EP parts of the survey. This week’s blog examines what you need to know about Federal Monitoring Surveys.
LTC Health FMS
There are three types of LTC Health FMS that are aimed at advising and evaluating state surveyors. An EP FMS is not conducted during Health FMS.
- Resource and Support Surveys (RSS) – Surveys where the Federal Surveyor(s) accompany state surveyors on an initial, standard, revisit, or complaint survey to observe and assess overall state surveyor team performance and performance related to specific areas of concern. During these surveys, federal surveyors may provide training and/or technical assistance to address identified performance needs while on-site, or because of the evaluation outcomes.
Most of the RSS are completed from October through March each year, however a RSS can be completed anytime during the Fiscal Year (FY). During the RSS, the federal surveyor will join the state survey team and provide active guidance and instruction for the concern areas. They will accompany the state surveyors when making observations and conducting interviews related to the area of concern. In addition to providing specific guidance related to the areas of concern, the Federal Surveyor will provide support for any other survey topic that may arise. To ensure both the effectiveness and efficiency of the survey, the Federal Surveyor will ensure the State Surveyors follow the guidance in the LTCSP Procedure Guide. The Federal Surveyor will be present for as much of the SA survey as necessary, and should remain on site to assist with decision making.
The Federal Surveyor will base the guidance and instruction provided in the regulations, interpretive guidance found in Appendix PP and Appendix Q of the State Operations Manual (SOM), and the critical element pathways for the applicable concern areas. All of these documents can be found in the survey resource folder on CMS.gov using the following link: https://www.cms.gov/Medicare/Provider-Enrollmentand-Certification/GuidanceforLawsAndRegulations/Nursing-Homes
- Focus Concern Surveys (FCS) – FCS are completed by one or more Federal Surveyor(s) conducting an independent investigation of the identified concern areas to monitor state surveyors’ performance. FCS occur within 60 calendar days of the exit date of a standard or complaint survey conducted by the state. FCS are conducted between April and October. The Federal Surveyor follows all investigative protocols and pathways for the concern areas to assess the effectiveness of the state survey agency’s performance.
The surveys selected for FCS can be standard surveys or complaint surveys.
Each FCS will include at least two of the identified concern areas for a given state. Every effort will be made so that each of the three concern areas are investigated on at least 50% of the surveys conducted.
During these surveys, the Federal Surveyor will independently investigate the areas of concern by following the investigative protocols in Appendix PP of the SOM and the critical element pathways for the applicable concern areas. The survey sample used will be 60% of the State survey sample of residents who were investigated for the concern area, but will not exceed five residents per care area. The Federal Surveyor will look at the state findings that identify the residents and concerns for those residents. Following completion of the investigation, the Federal Surveyor will then make compliance decisions related to these areas of focus and conduct an exit interview with the facility administrator and other staff that the facility wishes to include. The evidence supporting non-compliance will be shared with the facility. The facility will be notified at exit if any of the Federal findings have been determined to be Substandard Quality of Care (SQC), Harm, or Immediate Jeopardy (IJ).
For the three LTC Health National Concern Areas, a 2567 will only be drafted if noncompliance was identified by the Federal Surveyor at the IJ, Harm, or SQC level and was not identified by the state at that level of severity and scope. Independent, but associated, tags that are not at the SQC or higher level may be included if required to address the full breadth of facility noncompliance at the discretion of the Federal Surveyor. Sufficient information will be provided to the facility to allow correction of potential non-compliance that is not Substandard Quality of Care (SQC), Harm, or Immediate Jeopardy (IJ). If there are no citations, the CMS location will provide a CMS Form2567 with F000, Initial Comments, and marked to indicate an FCS was completed, but no deficiencies were cited.
- Health Comparative Survey– A full survey conducted by Federal Surveyors in the same facility, after a standard survey is conducted by the state survey agency. The purpose of a Health comparative survey is to monitor and evaluate the state survey agency’s performance. LTC Health comparative surveys are conducted within 60 calendar days following the standard survey conducted by the state surveyor agency.
LTC Life Safety Code (LSC) and Emergency Preparedness (EP) FMS
There are four types of LTC LSC FMS that are aimed at advising and evaluating state surveyors.
- LSC Resource and Support Survey (LSC RSS)– Surveys where the Federal Surveyor will observe and assess the state surveyor team’s performance. During these surveys, federal surveyors may provide training and/or technical assistance to address identified performance needs while on-site or because of the evaluation outcomes.
- LSC Comparative Survey – A full survey conducted by Federal Surveyors in the same facility, after a standard survey is conducted by the state survey agency. The purpose of a LSC comparative survey is to monitor and evaluate the state survey agency’s performance. An EP survey will be conducted with all LSC comparative surveys. LSC comparative surveys are conducted within 60 calendar days following the standard survey conducted by the state surveyor agency. The Federal Surveyor follows all investigative protocols and pathways for the concern areas to assess the effectiveness of the state survey agency’s performance.
- LSC Revisit Resource and Support Survey (LSC Revisit RSS) – A survey where the Federal Surveyor will observe and assess the State Survey team performance. The Federal Surveyor may provide training and/or technical assistance to address identified performance needs while on-site as a result of the evaluation of outcomes.
- LSC Revisit Comparative – A survey conducted by a Federal Surveyor in the same facility after a revisit survey is conducted by the State Survey team. The purpose of a LSC revisit comparative Survey is to monitor and evaluate the state surveyors’ performance. An EP survey will be conducted with all LSC revisit comparative surveys. LSC revisit comparative surveys will occur within 60 calendar days following the State’s revisit survey. The Federal Surveyor will primarily evaluate compliance with the requirements cited during State’s standard survey. The Federal Surveyor will follow all investigative protocols and assess the effectiveness of State surveyor team performance.
FY24-FY25 LTC Health National Concerns
For FY24 and FY25, CMS has identified three LTC Health National Concern Areas. The National Concern Areas were identified based on internal CMS data sources, OIG recommendations, and the White House Initiative to Improve Care in Nursing Homes. In addition to evaluating the three LTC Health National Concern Areas, CMS Locations may identify additional concern areas for States within their jurisdiction. One or more optional concern areas may be identified during the survey at the discretion of the Federal Surveyor. The three required LTC Health FMS concerns are:
- Nurse Staffing – Surveyors will use the Sufficient and Competent Nurse Staffing critical element pathway to assess compliance with the requirements at F851, F725, and F727.
- Unnecessary Psychotropic Medications – Surveyors will use the Unnecessary Medications, Psychotropic Medications, and Medication Regimen Review critical element pathways to assess compliance with the requirements at F641, F658, and F758.
- Facility-Initiated Discharges – Surveyors will use the Discharge critical element pathway to assess compliance with the requirements at F622, F624, and F626.
Facilities should review these Critical Element Pathways in addition to the Interpretive Guidance for each of the mentioned F-Tags to identify potential areas of non-compliance with these national concern areas. Areas of potential non-compliance should be reviewed by the QAA committee with a plan developed for achieving and maintaining compliance in these areas.
When determining survey selection for both Health RSS and FCS, CMS will prioritize providers based on data indicating a risk of non-compliance, those with a history of noncompliance, or allegations of noncompliance with the focused concern areas. Surveys selected may also be based on complaints related to one or more of the selected concern areas, media attention, or other justification. For RSS only, the Federal Health Surveyor will work collaboratively with the State Survey Agency to identify surveys and State Surveyors that will provide good training opportunities.
The estimated number of statutorily required FMS to be conducted in each state for FY24 and FY25 is provided in the appendix of the memo. These estimates are the same as the FY23 statutorily required mandates. Estimates will be updated to statutorily required totals when data on the total number of Nursing Homes surveyed in each state during the previous FY are available. (For FY24, the statutorily required FMS totals are anticipated on or before 2/28/24 and for FY25 the statutorily required FMS totals are anticipated on or before 2/28/25).
If a Form CMS-2567 is required, CMS will take appropriate enforcement action based on the survey findings. CMS will evaluate the findings and impose federal remedies according to current enforcement protocols. Additionally, loss of the Nurse Aide Training and Competence Evaluation Program (NATCEP) will occur when SQC is identified during an FCS or comparative survey.
Include Proactive in your survey readiness work plan. Contact us to schedule a mock survey, or for assistance in implementing a Plan of Correction. Access on-demand training Deep Dive into Federal Regulations and register to join us beginning in January for the new upcoming monthly series High Risk Tags & Immediate Jeopardies.
Shelly Maffia, RN, MSN, MBA, LNHA, QCP, CHC, CLNC, CPC
Director of Regulatory Services
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